Non mutual estoppel where the 2nd action contains

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Non-mutual estoppel: where the 2nd action contains different parties on a side (offensive: different s, defensive: different ∆s) a. Defensive Nonmutual Estoppel: i. Occurs when a party asserts estoppel “defensively,” to prevent the opposing party from proving an essential element of their claim. (a) Typically, a D will use the doctrine to prevent a P from asserting a claim that has been previously litigated, and which the P lost on. (1) Suit 1: P --------------> D1 (P loses on issue A) (2) Suit 2: P --------------> D2 (new D pleads CE to prevent from re- litigating the 1st suit) b. Offensive Nonmutual Estoppel: i. The court in Park Lane established that the use of ONmCE was valid (a) Usually involves a new P who seeks to borrow a finding from a prior action to impose liability on a party who was a D in a prior action. (1) Suit 1: P1 ------------->D (D loses on issue A) (2) Suit 2: P2 ------------->D (new P invokes CE to establish issue A in her suit against D) ii. The concerns which arise in this doctrine (a) encourages “hold back” plaintiffs (b) the D may not have aggressively litigated the first time (c) procedural rules may have been different the first time (d) gives the P a huge settlement advantage in the first suit c. Parklane Hosiery v. Shore: Can a non-party to a previous suit to a prior action assert collateral estoppel? i. Rule: a non party in a prior action is allowed to assert collateral estoppel. Mutuality is not necessary when in the court’s discretion, the issue was not fully litigated in the prior action d. Hardy v. Johns-Manville Corp : If a fact finder doesn’t necessarily determine all issues at hand, is CollEst appropriate in a subsequent suit? i. Rule: CollEst may not be invoked by a ∆ when the fact finder based his decision in the previous suit on one of several possible factors 27
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